Memo

TITLE OF BILL: An act to amend the general business law and the arts and cultural affairs law, in relation to theatrical employment agencies

PURPOSE OR GENERAL IDEA OF BILL: To clarify and create consistency in the regulation of theatrical employment agencies.

SUMMARY OF SPECIFIC PROVISIONS: Sections 1 and 3 of the bill would amend the General Business Law and the Arts and Cultural Law, respectively, to add a definition of "artist" and to make corresponding amendments to definitions of "theatrical employment agency" and "theatrical engagement."

Section 2 would amend the general business law to provide that, as is the case for other types of employment agencies and consistent with widespread practice, a theatrical employment agency may charge a fee absent a written contract if, the agency is responsible for referring the job applicant to an employer or an employer to a job applicant which results in employment for such applicant. The bill would clarify a fee is permitted where such theatrical employment agency represents an artist in a negotiation or renegotiation of an original or pre-existing contract. The bill would exempt theatrical employment agencies from the inapplicable requirement of offering installment plans.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Section 171 of the General Business Law and section 37.01 of the Arts and Cultural Affairs Law define theatrical engagements to apply to actors and performers related to the circus, vaudeville, the variety field, the legitimate theater, motion pictures, radio, television, phonograph recordings, transcriptions, opera, concert, ballet. Modeling or other entertainments or exhibitions or performances,

Section 181 of the General Business Law requires employment.agencies to provide to each applicant for employment a copy of the contract between such agency and applicant. The contract is to have pre-printed the statutory provisions of sections 385 and 186, relating to provisions primarily concerning domestics, Laborers, industrial workers and mechanics, among others.

Section 185 provides that the fees charged or accepted by an employment agency for Class "A" (i.e., domestics, household employees, unskilled or untrained manual workers and laborers, including agricultural workers; and Class "A1" (i.e., non-professional trained or skilled industrial workers or mechanics) workers are not subject to the requirement, of a written contract, but in no event shall the fee charged exceed the fee ceiling enumerated in statute. Employment agencies must offer applicants installments periods of five or ten weeks to pay applicable fees.

JUSTIFICATION:

Theatrical employment is different from most other types of employment and has been the subject of longstanding practices, procedures and bonafide guild/union agreements that distinguish theatrical employment agencies from, the typical employment agency. For this reason, certain statutory requirements in current law, particularly relating to the mandatory contract requirement of inapplicable provisions and contractual relationships between theatrical employment agencies and artists, do not reflect the custom and practice in the industry. This bill would make modest changes to the law to do so, while not compromising the protections and statutory fee for artists.

Specifically, the bill would amend the definition of theatrical engagements which are currently limited to actors and performers and as Class C employment. Thus, all other theatrical-related engagements for writers; directors, and cinematographers, among others, are classified as Class B employment - along with clerical workers. Class B statutory requirements are based on monthly salaries for job applicants and have little applicability to theatrical engagements.

The bill would modernize these definitions so employment related to theatrical engagements including for writers, directors and cinematographers - are appropriately classified as Class C and are not subject to the incompatible requirements for Class B employment. The bill would also authorize theatrical employment agencies to provide a notice of applicable provisions relating to fee ceilings and return of fees in written contracts relating to theatrical engagements. The current statutory provisions relate principally to fees and fee refunds concerning domestics, laborers, industrial workers and mechanics and not artists and are confusing in the context of theatrical engagements for artists.

Current law provides that contracts for domestics, household employees, unskilled or untrained manual workers, laborers, including agricultural workers, non-professional trained or skilled industrial workers, and mechanics need not be in writing in order for an employment agency a fee. The bill would include theatrical employment agencies to the current exception provided the theatrical agency has referred the artist to an employer or vice versa and has resulted in employment and circumstances where the theatrical employment agency is engaged by artist in the negotiating or renegotiating an original or pre-existing contract subject an statutory fee ceilings.

The bill would exempt theatrical employment agencies from the requirement of installment plans for the payment of theatrical agency fees. Installment plans make- no sense in the entertainment industry, since artists are typically engaged on a per production basis. Accordingly, establishing a framework for an artist to make installment payments does not work. Of course, theatrical employment agencies would continue to receive nothing unless and until the artist has compensation and then only on the amount the artist is paid and subject to the statutory fee ceiling.

PRIOR LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: Immediately.

Text

STATE OF NEW YORK
________________________________________________________________________
5576--B
Cal. No. 72
2011-2012 Regular Sessions
IN SENATE
June 3, 2011
___________

Introduced by Sen. GOLDEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules -- recommitted to
the Committee on Consumer Protection in accordance with Senate Rule 6,
sec. 8 -- reported favorably from said committee, ordered to first and
second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading -- again
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the general business law and the arts and cultural
affairs law, in relation to theatrical employment agencies
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 8 and 9 of section 171 of the general business
law, as amended by chapter 617 of the laws of 1988, are amended and a
new subdivision 8-a is added to read as follows:
8. "Theatrical employment agency" means any person (as defined in
subdivision seven of this section) who procures or attempts to procure
employment or engagements for [circus, vaudeville, the variety field,
the legitimate theater, motion pictures, radio, television, phonograph
recordings, transcriptions, opera, concert, ballet, modeling or other
entertainments or exhibitions or performances] AN ARTIST, but such term
does not include the business of managing [such] entertainments, exhibi-
tions or performances, or the artists or attractions constituting the
same, where such business only incidentally involves the seeking of
employment therefor.
8-A. "ARTIST" SHALL MEAN ACTORS AND ACTRESSES RENDERING SERVICES ON
THE LEGITIMATE STAGE AND IN THE PRODUCTION OF MOTION PICTURES, RADIO
ARTISTS, MUSICAL ARTISTS, MUSICAL ORGANIZATIONS, DIRECTORS OF LEGITIMATE
STAGE, MOTION PICTURE AND RADIO PRODUCTIONS, MUSICAL DIRECTORS, WRITERS,
CINEMATOGRAPHERS, COMPOSERS, LYRICISTS, ARRANGERS, MODELS, AND OTHER

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11532-05-2

S. 5576--B 2

ARTISTS AND PERSONS RENDERING PROFESSIONAL SERVICES IN MOTION PICTURE,
THEATRICAL, RADIO, TELEVISION AND OTHER ENTERTAINMENT ENTERPRISES.
9. "Theatrical engagement" means any engagement or employment of [a
person as an actor, performer or entertainer in employment described in
subdivision eight of this section] AN ARTIST.
S 2. Subdivisions 1 and 2 of section 185 of the general business law,
as amended by chapter 617 of the laws of 1988, are amended to read as
follows:
1. Circumstances permitting fee. An employment agency shall not charge
or accept a fee or other consideration unless in accordance with the
terms of a written contract with a job applicant, except:
(A) for class "A" and "A-1" employment, and except after such agency
has been responsible for referring such job applicant to an employer or
such employer to a job applicant and where as a result thereof such job
applicant has been employed by such employer; AND
(B) FOR CLASS "C" EMPLOYMENT: (I) AFTER AN AGENCY HAS BEEN RESPONSIBLE
FOR REFERRING AN ARTIST TO AN EMPLOYER OR SUCH EMPLOYER TO AN ARTIST AND
WHERE AS A RESULT THEREOF SUCH ARTIST HAS BEEN EMPLOYED BY SUCH EMPLOY-
ER; OR (II) AFTER AN AGENCY REPRESENTS AN ARTIST IN THE NEGOTIATION OR
RENEGOTIATION OF AN ORIGINAL OR PRE-EXISTING EMPLOYMENT CONTRACT AND
WHERE AS A RESULT THEREOF THE ARTIST ENTERS INTO A NEGOTIATED OR RENEGO-
TIATED EMPLOYMENT CONTRACT. FOR CLASS "C" EMPLOYMENT PURSUANT TO THIS
PARAGRAPH, AN EMPLOYMENT AGENCY SHALL PROVIDE AN ARTIST WITH A STATEMENT
SETTING FORTH IN A CLEAR AND CONCISE MANNER THE PROVISIONS OF THIS
SECTION AND SECTION ONE HUNDRED EIGHTY-SIX OF THIS ARTICLE.
The maximum fees provided for herein for all types of placements or
employment may be charged to the job applicant and a similar fee may be
charged to the employer provided, however, that with regard to place-
ments in class "B" employment, a fee of up to one and one-half times the
fee charged to the job applicant may be charged to the employer. By
agreement with an employment agency, the employer may voluntarily assume
payment of the job applicant's fee. The fees charged to employers by any
licensed person conducting an employment agency for rendering services
in connection with, or for providing employment in classes "A", "A-1"
and "B", as hereinafter defined in subdivision four of this section
where the applicant is not charged a fee shall be determined by agree-
ment between the employer and the employment agency. No fee shall be
charged or accepted for the registration of applicants for employees or
employment.
2. Size of fee; payment schedule. The gross fee charged to the job
applicant and the gross fee charged to the employer each shall not
exceed the amounts enumerated in the schedules set forth in this
section, for any single employment or engagement, except as hereinabove
provided; and such fees shall be subject to the provisions of section
one hundred eighty-six of this article. Except as otherwise provided
herein, AND EXCEPT FOR CLASS "C" EMPLOYMENT, an employment agency shall
not require an applicant while employed in the continental United
States, and paid weekly to pay any fee at a rate greater than in ten
equal weekly [instalments] INSTALLMENTS each of which shall be payable
at the end of each of the first ten weeks of employment, or if paid less
frequently, in five equal installments, each of which shall be payable
at the end of the first five pay periods following his employment, or
within a period of ten weeks, whichever period is longer. An employer's
fee shall be due and payable at the time the applicant begins employ-
ment, unless otherwise determined by agreement between the employer and
the agency.

S. 5576--B 3

S 3. Subdivisions 3 and 4 of section 37.01 of the arts and cultural
affairs law are amended and a new subdivision 5 is added to read as
follows:
3. "Theatrical employment agency" means any person (as defined in
subdivision one hereof) who procures or attempts to procure employment
or engagements for [circus, vaudeville, the variety field, the legiti-
mate theater, motion pictures, radio, television, phonograph recordings,
transcriptions, opera, concert, ballet, modeling or other entertainments
or exhibitions or performances] AN ARTIST, but such term does not
include the business of managing [such] entertainments, exhibitions or
performances, or the artists or attractions constituting the same, where
such business only incidentally involves the seeking of employment
therefor.
4. "Theatrical engagement" means any engagement or employment of [a
person as an actor, performer or entertainer] AN ARTIST in employment
described in subdivision three of this section.
5. "ARTIST" SHALL MEAN ACTORS AND ACTRESSES RENDERING SERVICES ON THE
LEGITIMATE STAGE AND IN THE PRODUCTION OF MOTION PICTURES, RADIO
ARTISTS, MUSICAL ARTISTS, MUSICAL ORGANIZATIONS, DIRECTORS OF LEGITIMATE
STAGE, MOTION PICTURE AND RADIO PRODUCTIONS, MUSICAL DIRECTORS, WRITERS,
CINEMATOGRAPHERS, COMPOSERS, LYRICISTS, ARRANGERS, MODELS, AND OTHER
ARTISTS AND PERSONS RENDERING PROFESSIONAL SERVICES IN MOTION PICTURE,
THEATRICAL, RADIO, TELEVISION AND OTHER ENTERTAINMENT ENTERPRISES.
S 4. This act shall take effect immediately.

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